The ICC opens an investigation in Burundi: balancing the obligation to protect witnesses with the obligation to inform State Parties

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Original: English No. ICC-01/17-X

Date: 25 October 2017 Date Public Redacted Version: 9 November 2017

PRE-TRIAL CHAMBER III

Before: Judge Chang-ho Chung, Presiding Judge Judge Antoine Kesia‐Mbe Mindua Judge Raul C. Pangalangan

SITUATION IN THE REPUBLIC OF BURUNDI

Public

Public Redacted Version of “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the

Republic of Burundi”, ICC-01/17-X-9-US-Exp, 25 October 2017

Decision to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Fatou Bensouda, Prosecutor James Stewart, Deputy Prosecutor

Counsel for the Defence

Legal Representatives of Victims Legal Representatives of Applicants

Unrepresented Victims Unrepresented Applicants for Participation/Reparations

The Office of Public Counsel for Victims

The Office of Public Counsel for the Defence

States Representatives

REGISTRY

Amicus Curiae

Registrar

Herman von Hebel, Registrar

Defence Support Section

Victims and Witnesses Unit Nigel Verrill, Chief

Detention Section

Victims Participation and Reparations Section

Philipp Ambach, Chief

Other

I. PROCEDURAL HISTORY ... 4

II. PRELIMINARY MATTERS ... 5

A. Classification of the Request ... 5

B. Delayed Notification under Article 18 of the Statute ... 10

C. Victims ... 12

D. Article 127 of the Statute ... 12

III. ARTICLE 15 OF THE STATUTE... 15

IV. JURISDICTION ... 16

A. Crimes Against Humanity ... 17

1. Contextual Elements ... 17

a) The Law ... 17

b) The Facts ... 17

c) Conclusion ... 24

2. The Crimes ... 25

a) Murder and Attempted Murder ... 25

b) Imprisonment or Severe Deprivation of Liberty ... 33

c) Torture ... 43

d) Rape... 52

e) Enforced Disappearance ... 56

f) Persecution ... 62

B. War Crimes ... 65

V. ADMISSIBILITY ... 68

A. Complementarity ... 70

1. The Law ... 70

2. The Facts ... 71

a) Commission on the Events of 26 April 2015 ... 73

b) Commission on the Events of 13 October 2015 ... 75

c) Commission on the Events of 11 December 2015 ... 80

d) Other National Proceedings ... 86

3. Conclusion ... 87

B. Gravity ... 88

1. The Law ... 88

2. The Facts ... 89

3. Conclusion ... 91

VI. THE INTERESTS OF JUSTICE ... 91

VII. THE SCOPE OF THE AUTHORIZED INVESTIGATION ... 92

VIII. OPERATIVE PART ... 93

PRE-TRIAL CHAMBER III of the International Criminal Court (“Court”) issues this decision pursuant to article 15 of the Rome Statute (“Statute”) on the authorization of an investigation into the situation in the Republic of Burundi (“Burundi”).

I. PROCEDURAL HISTORY

1. On 23 August 2017, the Presidency of the Court constituted Pre-Trial Chamber III (“Chamber”) and assigned the situation in Burundi to it.

2. On 31 August 2017, the Judges of the Chamber elected Judge Chang-ho Chung as Presiding Judge of the Chamber.

3. On 31 August 2017, the Chamber issued the “Decision on the Prosecutor’s Request for Extension of the Page Limit”, granting the Prosecutor’s request for an extension of the page limit for her request for authorization of an investigation into the situation in Burundi.

4. On 5 September 2017, the Prosecutor submitted her “Request for authorisation of an investigation pursuant to article 15” (“Request”), together with eight annexes.

The Prosecutor filed her Request under seal and ex parte, only available to the Prosecutor, pursuant to regulation 23bis of the Regulations of the Court (“Regulations”).

5. On 15 September 2017, the Chamber issued the “Order to the Prosecutor to Provide Additional Information” (“15 September 2017 Order”), ordering the Prosecutor to provide the Chamber with additional information regarding the level

1 Presidency, Decision on the constitution of Pre-Trial Chamber III and on the assignment of the situation in the Republic of Burundi, ICC-01/17-X-1-US-Exp, with one under seal ex parte annex.

2 Pre-Trial Chamber III, Decision on the Election of Presiding Judge, ICC-01/17-X-3-US-Exp.

3 Pre-Trial Chamber III, ICC-01/17-X-4-US-Exp.

4 ICC-01/17-X-5-US-Exp.

5 Request, para. 9.

of classification of her Request and the communications she had received from victims or organizations representing victims.

6. On 25 September 2017, the Prosecutor provided the additional information requested (“Prosecutor’s Additional Information”).

II. PRELIMINARY MATTERS A. Classification of the Request

7. Pursuant to the classification of the Request as under seal and ex parte, only available to the Prosecutor, the Prosecutor requests that the Chamber issue its decision under article 15(4) of the Statute with the same classification. She submits that “article 15 is essentially an ex parte procedure and the situation state is not afforded any participatory rights at this stage; victims may make representations under article 15(3), but this right is subject to the procedural framework provided for in rule 50, which expressly relieves the Prosecution of its duty to provide notice to victims […]”.

8. The Chamber agrees that article 15(3) of the Statute does not confer any rights of participation on the State(s) which would normally exercise jurisdiction over the alleged crimes. Pursuant to article 18 of the Statute, such a State acquires rights of participation only once the Prosecutor initiates an investigation following authorization by a Pre-Trial Chamber.

9. However, in the view of the Chamber, the Prosecutor’s interpretation of the relationship between article 15(3) of the Statute and rule 50(1) of the Rules of Procedure and Evidence (“Rules”) is legally untenable. Article 15(3) of the Statute grants victims an independent, direct avenue to make representations before a Pre-

6 Pre-Trial Chamber III, ICC-01/17-X-6-US-Exp.

7 ICC-01/17-X-7-US-Exp, with one under seal ex parte annex; see also ICC-01/17-X-8-US-Exp with one under seal ex parte annex.

8 Request, para. 12.

Trial Chamber seized of a request for authorization of an investigation. The words

“in accordance with the Rules of Procedure and Evidence” contained in this article, which recur repeatedly in other provisions of the Statute, simply mean that the Rules establish the process for implementing the corresponding article of the Statute.

Contrary to the Prosecutor’s submission, such a process does not detract from the rights afforded to victims as such. In this regard, the Chamber recalls that the Rules are an instrument for the application of the Statute to which they are subordinate in all cases

and, pursuant to article 51(5) of the Statute, the Statute shall prevail over the Rules. It has, furthermore, been established that a provision of the Rules cannot be interpreted in a manner as to narrow the scope of an article of the Statute.

Thus, the Prosecutor’s interpretation that rule 50(1) of the Rules makes the victims’ rights set forth in article 15(3) of the Statute subject to the Prosecutor’s decision on giving notice must be rejected.

10. Having said that, the Chamber considers that the Prosecutor is not barred from making a determination that giving notice would pose a danger to the life or well- being of the victims and witnesses or to the integrity of the investigation pursuant to rule 50(1) of the Rules. However, this rule should be interpreted to mean that such a determination by the Prosecutor is not definitive with regard to the right of victims to make representations to the Pre-Trial Chamber. It is rather subject to a decision of the Pre-Trial Chamber on this matter. The reason is that a decision not to give notice would adversely affect the victims’ right to make representations to the Pre-Trial Chamber and must, therefore, undergo judicial scrutiny by that Chamber. This interpretation finds further support in rule 50(4) of the Rules, which provides that it falls upon the Pre-Trial Chamber to decide on the procedure to be followed. The

9 Explanatory note to the Rules adopted by the Assembly of States Parties at its first session, 3-10 September 2002, ICC-ASP/1/3.

10 Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo, Decision on the Application for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS5 and VPRS 6, 17 January 2006, ICC-01/04-101-tEN-Corr, para. 47.

Chamber also recalls its duty to protect the safety and well-being of victims and witnesses in accordance with article 68(1) of the Statute. It follows that, once an initial determination has been made by the Prosecutor on the basis of rule 50(1) of the Rules, the Pre-Trial Chamber may restrict victims’ right of participation in certain situations in accordance with article 68(1) of the Statute.

11. In sum, the Chamber finds that, on the basis of a combined reading of articles 15(3), 18 and 68(1) of the Statute and rule 50(1) of the Rules, a procedure pertaining to a request for authorization of an investigation may, under certain circumstances, be conducted under seal, ex parte, with the Prosecutor only. The enquiry to be made is whether, following an initial determination by the Prosecutor, the Chamber considers that notifying victims would pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses. The Chamber, therefore, turns to the Prosecutor’s submissions regarding the level of classification of the Request.

12. The Prosecutor submits that the level of classification is based on “the existence of potential risks to the success and integrity of a future investigation, as well as on considerations concerning the safety and security of witnesses and victims of the alleged crimes”.

In the Prosecutor’s Additional Information, the Prosecutor adds that the Government of Burundi has not merely been uncooperative but has actively sought to target, both in Burundi and abroad, persons who it perceives could implicate it in the crimes alleged, as established by additional sources.

In this regard, the Prosecutor further indicates that, although the existence of the preliminary examination into the situation in Burundi is public, her assessment is that the concrete possibility of an investigation is likely to affect the calculations of those implicated by the crimes.

The Prosecutor also avers that the level of

11 Request, para. 9.

12 Prosecutor’s Additional Information, paras 7-20.

13 Prosecutor’s Additional Information, para. 40.

confidentiality is warranted by lessons learned from experience in previous investigations.

With regard to the steps being undertaken, the Prosecutor submits that the Prosecution’s Protection Strategies Unit has begun the process of developing a Witness Security Strategy and a Concept of Operations which involves a review, assessment, and identification of particular measures.

The Prosecutor expressly acknowledges the limited measures she and the Victims and Witnesses Unit (“VWU”) more generally can take, but maintains that the classification level is based on a reasonable request for preventative measures to safeguard the integrity of the proceedings and the life and well-being of victims and witnesses.

13. The Chamber considers that multiple sources indicate that the Government of Burundi has interfered with, intimidated, or harmed victims and witnesses.

[REDACTED].

[REDACTED]

[REDACTED].

In addition, the Government of Burundi is suspending international cooperation in connection with the alleged crimes. Most notably, it has denied access to the members of the United Nations Independent Investigation in Burundi (“UNIIB”) and has withdrawn from the Statute.

14. The Chamber considers that, on the basis of the available documentation, the past and present circumstances in Burundi and neighbouring countries indeed establish that there is a danger to the life or well-being of victims and potential witnesses. This further entails that the integrity of the Prosecutor’s investigation into the situation in Burundi, if authorized, may be compromised. In this regard, it is particularly worrying that [REDACTED]. In these circumstances, the Chamber finds

14 Prosecutor’s Additional Information, paras 21-27.

15 Prosecutor’s Additional Information, paras 29-32.

16 Prosecutor’s Additional Information, paras 37, 41.

17 Request, paras 59-61, 71.

18 [REDACTED].

19 [REDACTED].

20 [REDACTED].

21 Request, para. 22.

that such risks may be attenuated by conducting the present article 15 procedure under seal and ex parte, only available to the Prosecutor, and issuing its decision with the same level of classification. Therefore, the request concerning the level of classification is granted.

15. Nevertheless, the Chamber finds it imperative to clarify that, contrary to the Prosecutor’s argument,

meaningful steps to protect victims and (potential) witnesses may already be undertaken under article 68(1) of the Statute prior to the authorization of an investigation by a Pre-Trial Chamber pursuant to article 15 of the Statute. Article 68(1) of the Statute provides in the relevant part that the Prosecutor

“shall take such measures particularly during the investigation and prosecution” of crimes within the jurisdiction of the Court. The use of “particularly” indicates that such measures are not confined to the investigation and prosecution stages and may, therefore, also be applied at the preliminary examination stage. Indeed, pursuant to article 15(2) of the Statute, the Prosecutor may receive written or oral testimony at the seat of the Court at this stage and may even, under rule 47 of the Rules, request the Pre-Trial Chamber to take measures as may be necessary to ensure the efficiency and integrity of the proceedings. In such circumstances, the Prosecutor, or the Pre- Trial Chamber acting under rule 47 of the Rules and article 57(3)(c) of the Statute, would be required to take measures to protect the safety and well-being of those witnesses. Further, the fact that States Parties are not obliged to cooperate with the Court prior to the initiation of an investigation does not prevent the Prosecutor from seeking their voluntary cooperation in the implementation of protective measures.

The same would apply to States not Parties to the Statute and non-state entities.

Therefore, measures such as those envisaged in the Prosecutor’s Additional Information

could be implemented before a Pre-Trial Chamber decides on an article 15 request. Nevertheless, the steps that the Prosecutor can take are subject to

22 Request, para. 11.

23 Prosecutor’s Additional Information, para. 31.

consultation with and the cooperation of the VWU, taking into consideration its unique mandate pursuant to article 43(6) of the Statute and rules 17 to 19 of the Rules.

B. Delayed Notification under Article 18 of the Statute

16. In addition to the level of classification of her Request and the issuance of the present decision with the corresponding level of classification, the Prosecutor requests that, should the Chamber authorize the commencement of an investigation, she be allowed ten working days to complete her planning before providing notice under article 18 of the Statute to all States Parties and other States which would normally exercise jurisdiction, including Burundi.

[REDACTED].

17. The Chamber notes that article 18(1) of the Statute provides in the relevant part that, “[w]hen […] the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned”. The words “shall notify” signify the Prosecutor’s duty to proceed with such a notification. The only limitation envisaged is the possibility to limit the scope of the information “where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons”.

Accordingly, the Chamber considers that article 18(1) of the Statute, read in conjunction with article 15(1), (3) and (4) of the Statute, establishes in principle that, as soon as a Pre-Trial Chamber has authorized the commencement of an investigation, the Prosecutor must notify States and especially the State which would

24 Appeals Chamber, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules” of Pre-Trial Chamber I, 26 November 2008, ICC-01/04-01/07-776, para. 101.

25 Request, para. 13.

26 Prosecutor’s Additional Information, paras 33-36.

normally exercise jurisdiction, in order to enable it to assert its primary jurisdiction under article 18(2) of the Statute.

18. Nevertheless, the Chamber is also mindful of article 68(1) of the Statute, which provides in the relevant part that “[t]he Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses”. As discussed, this duty applies at the preliminary examination stage as well. Accordingly, when deciding on the Prosecutor’s request, the Chamber is required to balance the Prosecutor’s duty to inform States as soon as a Pre-Trial Chamber has authorized the commencement of an investigation with the duty, incumbent upon the Court as a whole, to protect victims and witnesses.

19. While the Prosecutor could have undertaken more meaningful action in the

preliminary examination phase under article 68(1) of the Statute, the Chamber finds

that delayed notification is warranted in the exceptional circumstances of this

situation. In view of the continued risks facing the victims and potential witnesses

[REDACTED] as well as the complete lack of international cooperation on the part of

the Burundian authorities, the Chamber considers that the Prosecutor must be

allowed a limited period of time for the sole purpose of preparing and implementing

protective measures for victims and (potential) witnesses, if authorization to

commence an investigation is granted. Accordingly, a fair balance between

articles 18(1) and 68(1) of the Statute requires that, for the purposes of the particular

situation in Burundi, the Prosecutor’s request for a delay of ten working days in

notifying a potential decision authorizing an investigation to the States concerned be

granted. However, the Chamber underlines the fact that this exceptional and limited

delay in the notification to be provided under article 18(1) of the Statute does not in

any way diminish the rights accorded to States under article 18(1) and (2) of the

Statute and rules 52 to 54 of the Rules to ensure that their primary jurisdiction is

respected, which is the main purpose of article 18 of the Statute.

C. Victims

20. The Prosecutor indicates that she “has sought to ascertain the interests of victims through direct consultations with human rights organisations representing victims [REDACTED] as well as through an examination of communications received and publicly available information”.

In more specific terms, the Prosecutor states that “[a] total of [REDACTED] different civil society organisations have submitted information under article 15”

and that she has received a significant number of [REDACTED] of victims of alleged crimes of relevance to the Request.

21. The Chamber requested additional information under rule 50(4) of the Rules to assess the views of the victims and deems it appropriate to consider such information for the purposes of its article 15(4) decision. Accordingly, even though this procedure is exceptionally classified as under seal, ex parte, only available to the Prosecutor, the Chamber is additionally guided by the views expressed by the victims in the aforementioned documents. However, this exceptional procedure is not to be seen as replacing the procedural right accorded to victims under article 15(3) of the Statute.

D. Article 127 of the Statute

22. As indicated, Burundi withdrew from the Statute by written notification addressed to the Secretary-General of the United Nations on 27 October 2016.

This withdrawal shall take effect on 27 October 2017.

23. Accordingly, the Chamber has to define the legal consequences of Burundi’s withdrawal on the Request and Burundi’s obligations in relation to an investigation,

27 Request, para. 198.

28 Prosecutor’s Additional Information, para. 45.

29 Prosecutor’s Additional Information, paras 49-50.

30 Depositary Notification C.N.805.2016.TREATIES-XVIII.10.

if authorized.

In this regard, the Chamber considers that a distinction must be made between, on the one hand, the Court’s jurisdiction prior to the entry into effect of the withdrawal and, on the other hand, Burundi’s obligations arising from the Statute subsequent to the entry into effect of the withdrawal.

24. The Chamber finds that the jurisdiction of the Court prior to the entry into effect of a withdrawal must be determined in light of article 127(1), second sentence, of the Statute. This provision stipulates that a withdrawal takes “effect one year after the date of receipt of the notification”. On this basis, a withdrawing State remains, for all intents and purposes, a State Party in the period between the communication of the notification of withdrawal and the end of the ensuing one-year interval.

Therefore, by ratifying the Statute, a State Party accepts, in accordance with article 12(1) and (2) of the Statute, the jurisdiction of the Court over all article 5 crimes committed either by its nationals or on its territory for a period starting at the moment of the entry into force of the Statute for that State and running up to at least one year after a possible withdrawal, in accordance with article 127(1) of the Statute.

This acceptance of the jurisdiction of the Court remains unaffected by a withdrawal of the State Party from the Statute. Therefore, the Court retains jurisdiction over any crimes falling within its jurisdiction that may have been committed in Burundi or by nationals of Burundi up to and including 26 October 2017. As a consequence, the exercise of the Court’s jurisdiction, i.e. the investigation and prosecution of crimes committed up to and including 26 October 2017, is, as such, not subject to any time limit.

The Court will further address the matter of the temporal parameters of the investigation arising from the Request below.

31 Request, para. 8.

32 Burundi deposited its instrument of ratification on 21 September 2004, see C.N.936.2004.TREATIES-26. The Statute entered into force for Burundi on 1 December 2004.

33 It is also to be underlined that, in accordance with article 29 of the Statute, the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.

25. The obligations of a withdrawing State Party, after the withdrawal takes effect, are specifically governed by article 127(2) of the Statute. The first sentence of this provision sets forth, in general, that “[a] State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued”. The second sentence of article 127(2) of the Statute stipulates, more specifically, that “[i]ts withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective”. On the whole, article 127(2) of the Statute gives effect to the principle contained in article 70(1)(b) of the Vienna Convention on the Law of Treaties,

which provides that the termination of a treaty “[d]oes not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”.

26. The Chamber notes that the relationship between the first and second sentences of article 127(2) of the Statute may be construed in different ways. However, the Chamber considers that it need not resolve this matter in relation to this Request. In the view of the Chamber, any obligations on the part of Burundi arising out of the Chamber’s article 15(4) decision would survive Burundi’s withdrawal. The reason is that the present decision is delivered prior to the entry into effect of Burundi’s withdrawal on 27 October 2017. Accordingly, it cannot be disputed that, if authorized, an investigation into the situation in Burundi would commence prior to the date on which the withdrawal became effective. Therefore, subsequent to the entry into force of its withdrawal, Burundi’s obligation to cooperate with the Court

34 UNTS, vol. 1155, p. 331 (23 May 1969).

in relation to such an investigation, if authorized, remains in effect for as long as the investigation lasts and encompasses any proceedings resulting from the investigation.

III. ARTICLE 15 OF THE STATUTE

27. Article 15(3) of the Statute provides that, “[i]f the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected”. Pursuant to rule 48 of the Rules, the Prosecutor’s determination as to a reasonable basis to proceed with an investigation is guided by the factors set out in article 53(1)(a)-(c) of the Statute.

28. Under article 15(4) of the Statute, “[i]f the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case”. The purpose of this provision is to curb abuse of power on the part of the Prosecutor by subjecting the exercise of his or her proprio motu powers to initiate an investigation to judicial scrutiny.

Furthermore, like the Prosecutor’s article 15(3) determination, the article 15(4) decision of the Pre-Trial Chamber is based on the criteria enumerated in article 53(1)(a)-(c) of the Statute.

35 Pre-Trial Chamber II, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (“Kenya Article 15 Decision”), 31 March 2010, ICC-01/09-19-Corr, paras 17-18; Pre-Trial Chamber III, Situation in the Republic of Côte d’Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire (“Côte d’Ivoire Article 15 Decision”), 15 November 2011, ICC-02/11-14-Corr, para. 21; Pre-Trial Chamber I, Situation in Georgia, Decision on the Prosecutor’s Request for Authorization of an Investigation (“Georgia Article 15 Decision”), 27 January 2016, ICC-01/15-12, para. 3.

36 Kenya Article 15 Decision, paras 20-25; Côte d’Ivoire Article 15 Decision, para. 21; Georgia Article 15 Decision, para. 4.

IV. JURISDICTION

29. On the basis of article 53(1)(a), the first criterion to be examined is whether the information available “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”.

30. This threshold is considered to be the lowest evidentiary standard provided for in the Statute.

Accordingly, when reviewed against this standard, the relevant material is required neither to point towards one conclusion

nor to be conclusive.

Rather, a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed must be established.

In this regard, the Chamber considers that it does not follow that an investigation should not be opened where facts or accounts are difficult to establish, unclear, or conflicting. Such circumstances in fact call for an investigation to be opened, provided that the relevant requirements have been met.

31. The Chamber further recalls that, for a crime to fall within the jurisdiction of the Court, all jurisdictional prerequisites must be satisfied. Thus, the crime must:

(i) fall within the category of crimes set out in article 5 and defined in articles 6 to 8 of the Statute (jurisdiction ratione materiae); (ii) fulfil the temporal conditions specified in article 11 of the Statute (jurisdiction ratione temporis); and (iii) meet one of the two requirements contained in article 12(2) of the Statute (jurisdiction ratione loci or ratione personae).

37 Kenya Article 15 Decision, paras 33-34; Côte d’Ivoire Article 15 Decision, para. 24.

38 Kenya Article 15 Decision, para. 34; Georgia Article 15 Decision, para. 25.

39 Côte d’Ivoire Article 15 Decision, para. 24; Georgia Article 15 Decision, para. 25.

40 Kenya Article 15 Decision, para. 35; Côte d’Ivoire Article 15 Decision, para. 24; Georgia Article 15 Decision, para. 25.

41 Pre-Trial Chamber I, Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation (“Comoros Article 53 Decision”), 16 July 2015, ICC-01/13-34, para. 13.

42 Kenya Article 15 Decision, para. 39.

A. Crimes Against Humanity 1. Contextual Elements a) The Law

32. The chapeau of Article 7 of the Statute sets out the contextual elements of crimes against humanity as “a widespread or systematic attack directed against any civilian population”.

Article 7(2)(a) of the Statute further defines an “attack directed against any civilian population” as a “course of conduct involving the multiple commission of acts referred to in [article 7(1) of the Statute] pursuant to or in furtherance of a State or organizational policy to commit such attack”.

As regards the elements “attack”,

“civilian population”,

“policy”

and “widespread or systematic”,

the Chamber relies on the established case-law of the Court. Lastly, any of the underlying crimes must have been committed as part of the attack.

b) The Facts (i) The Attack

33. The information available indicates that since at least 26 April 2015 the civilian population in Burundi has been subject to an attack by members of different

43 The Chamber considers that the requirement that the perpetrator had knowledge of the attack cannot be adequately addressed at the current stage of the proceedings as there is no suspect before the Court at this point;

see Kenya Article 15 Decision, para. 79.

44 See also second and third paragraphs of the Introduction to article 7 in the Elements of Crimes.

45 Paragraph 3 of the Introduction to article 7 in the Elements of Crimes; Trial Chamber III, Prosecutor v Jean- Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute (“Bemba Judgment”), 21 March 2016, ICC-01/05-01/08-3343, paras 149-151; Trial Chamber II, Prosecutor v Germain Katanga, Judgment pursuant to article 74 of the Statute, 7 March 2014 (“Katanga Judgment”), ICC-01/04-01/07-3436-tENG, para. 1101.

46 Article 50 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (“Additional Protocol I”), adopted on 8 June 1977, UNTS vol. 1125, p. 3; Bemba Judgment, paras 152-156; Katanga Judgment, paras 1102-1105; Pre-Trial Chamber II, Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (“Bemba Confirmation Decision”), 15 June 2009, ICC-01/05-01/08-424, paras 76-78.

47 Paragraph 3 of the Introduction to article 7 and footnote 6 of the Elements of Crimes; Bemba Judgment, paras 159-161; Katanga Judgment, paras 1106-1109.

48 Bemba Judgment, paras 162-163; Katanga Judgment, para. 1123.

Burundian State institutions as well as members of the youth wing of the ruling party, known as the Imbonerakure.

34. On 25 April 2015 the ruling party of Burundi, the Conseil National pour la Défense de la Démocratie – Forces de Défense de la Démocratie (“CNDD-FDD”), nominated President Pierre Nkurunziza (“President Nkurunziza”) as its candidate in the 2015 presidential elections, running for a third term in office.

His eligibility was contested as being unconstitutional,

and civilians started demonstrating against his candidacy on 26 April 2015, in particular in the capital, Bujumbura, but also in other locations across the country.

35. The situation started to take a violent course soon after the start of the protests.

According to the material submitted, from the first day of the protests, members of the police shot at civilians who were demonstrating, causing the death of a number of them.

While the protests were not entirely peaceful,

it is reported that the police used live ammunition in response to demonstrators who were throwing stones at them and shot at unarmed civilians who were running from the police or were otherwise not posing a threat.

Also, whereas some members of the police appear to

49 Report of the Secretary-General on the United Nations Electoral Observation Mission in Burundi, 7 July 2015, UN Doc. S/2015/510, BDI-OTP-0003-4331, at 4332, para. 6 (“BDI-OTP-0003-4331”); Report of the Delegation of the African Commission on Human and People’s Rights on its Fact-Finding Mission to Burundi, 7-13 December 2015, BDI-OTP-0003-1211, at 1224-1225, para. 33 (“BDI-OTP-0003-1211”).

50 BDI-OTP-0003-4331, at 4332, para. 5; BDI-OTP-0003-1211, at 1224-1225, paras 30-34.

51 BDI-OTP-0003-4331, at 4332, para. 6; BDI-OTP-0003-1211, at 1225, para. 34; Report of the United Nations Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council resolution S- 24/1, 20 September 2016, UN Doc. A/HRC/33/37, BDI-OTP-0003-4258, at 4262, para. 23 (“BDI-OTP-0003- 4258”).

52 BDI-OTP-0003-1211, at 1229-1230, paras 47-50; BDI-OTP-0003-4331, at 4332, para. 6.

53 République du Burundi, Ministère de la Justice, Commission d’Enquête chargée de faire la lumière sur le mouvement insurrectionnel déclenché le 26 avril 2015, Rapport, August 2015, BDI-OTP-0003-4783, at 4796- 4801 (“BDI-OTP-0003-4783”); Rapport de la Commission d’enquête sur le Burundi, 11 August 2017, UN Doc.

A/HRC/36/54, BDI-OTP-0005-0003, at 0010, para. 29 (“BDI-OTP-0005-0003”); BDI-OTP-0003-1211, at 1231-1232, paras 53-54.

54 Amnesty International, Braving Bullets: Excessive Force in Policing Demonstrations in Burundi, 2015, BDI- OTP-0003-1661, at 1682 (“BDI-OTP-0003-1661”); BDI-OTP-0003-4258, at 4265, para. 41, at 4268, para. 62;

Committee against Torture Concluding observations of the Committee on the special report of Burundi requested under article 19(1) in fine of the Convention, 9 September 2016, UN Doc. CAT/C/BDI/CO/2/Add.1, BDI-OTP-0003-4293, at 4299, para. 20 (“BDI-OTP-0003-4293”); BDI-OTP-0003-1211, at 1230, para. 47, at

have handled demonstrators peacefully, the available information shows that policemen were reportedly told “to shoot demonstrators, because they are putschists; [they] were not given helmets, shields […], only weapons”.

It is also reported that pick-up trucks arrived at the site of demonstrations on several occasions dropped off some policemen who just started shooting and left.

36. The security forces also carried out arrests of civilians who were participating or were suspected of participating in the protests which the Government had declared illegal.

In addition, human rights activists and members of civil society, members of opposition parties, and journalists were also targeted, in particular through (attempted) assassinations and arbitrary arrests.

According to the material submitted, most of those arrested were afterwards subjected to torture while they were being detained in official or unofficial places of detention.

37. The violence was exacerbated when on 13 May 2015 elements of the security forces launched a coup d’état.

The coup was foiled after two days, but in the aftermath grenade attacks continued to be carried out by unidentified men against the police and soldiers in Bujumbura.

In response to these events, the security forces, supported by members of the Imbonerakure, conducted cordon and search operations in neighbourhoods of Bujumbura where attacks on the security forces

1237, para. 72; Human Rights Watch, Police abuses exposed during Burundi protests (video), uploaded 16 June 2015, BDI-OTP-0002-0045.

55 BDI-OTP-0003-1661, at 1695.

56 BDI-OTP-0003-1661, at 1695.

57 BDI-OTP-0003-1211, at 1231, para. 52, at 1235, para. 65. It is reported that the protests subsided around June 2015, BDI-OTP-0003-1211, at 1237, para. 72; BDI-OTP-0005-0003, at 0010, para. 29.

58 BDI-OTP-0003-1211, at 1231, para. 52, at 1237, para. 71; BDI-OTP-0003-4331, at 4342, para. 44; Rapport du Haut-Commissaire des Nations Unies aux droits de l’homme sur la situation des droits de l’homme au Burundi, 17 June 2016, UN Doc. A/HRC/32/30, BDI-OTP-0003-4119, at 4125, para. 18 (“BDI-OTP-0003- 4119”); BDI-OTP-0005-0003, at 0011, para. 35, at 0014, para. 57; International Federation for Human Rights, Repression and genocidal dynamics in Burundi, November 2016, BDI-OTP-0003-1932, at 1958, at 1986-1988 (“BDI-OTP-0003-1932”).

59 BDI-OTP-0003-4331, at 4334, para. 13; BDI-OTP-0003-1932, at 2006-2013.

60 BDI-OTP-0003-1211, at 1233-1234, paras 59 and 60.

61 BDI-OTP-0003-1211, at 1237-1239, paras 73, 76-77, at 1243, para. 91.

had occurred or which were considered to be associated with the opposition.

The available information shows that, in the course of these operations, the security forces and members of the Imbonerakure summarily executed dozens of civilians suspected of having attacked the security forces or of having demonstrated against President Nkurunziza’s third term.

The killings followed a pattern: the security forces made residents come out of their houses, forced some of them to kneel or lie down in the street, and executed them with bullets to the head or abdomen.

Mass arrests were also carried out in the context of these operations, which were accompanied or followed by torture and rape.

38. A high point in the escalating pattern of crimes was marked by an attack by unidentified armed men on four military positions in and around Bujumbura on 11 December 2015.

In response to these attacks, the security forces conducted cordon and search operations in neighbourhoods of Bujumbura considered to be associated with the opposition. The material submitted reveals that in the course of these operations, members of the security forces and the Imbonerakure killed dozens or possibly hundreds of civilians,

arrested around 300 young men from their homes,

committed acts of torture

and raped or gang-raped women and girls in their homes.

39. After 11 December 2015, the number of killings in the context of cordon and search operations declined. It is reported that, instead, executions continued to be

62 Human Rights Watch, Burundi’s Human Rights Crisis, 2016, BDI-OTP-0003-1793, at 1883-1886 (“BDI- OTP-0003-1793”); BDI-OTP-0003-4258, at 4262, paras 24-25.

63 BDI-OTP-0003-1932, at 1977-1981.

64 BDI-OTP-0003-1932, at 1961 and at 1977-1981; BDI-OTP-0003-1793, at 1883-1886.

65 BDI-OTP-0003-4119, at 4122, para. 7, at 4125, para. 19, at 4127, para. 30, see also at 4125, para. 21; BDI- OTP-0005-0003, at 0011-0013, paras 40, 43 and 50; BDI-OTP-0003-4258, at 4269, para. 68.

66 BDI-OTP-0003-1211, at 1245, para. 99; BDI-OTP-0003-4119, at 4122, para. 7.

67 BDI-OTP-0003-4293, at 4295, para. 8; BDI-OTP-0003-1932, at 1963; BDI-OTP-0003-4119, at 4124, para. 13; Amnesty International, “My Children Are Scared”: Burundi’s Depening Human Rights Crisis, 22 December 2015, BDI-OTP-0003-1717, at 1717-1722 (“BDI-OTP-0003-1717”).

68 Reportedly, at least 154 of them were later found dead on the streets of Bujumbura on 11 and 12 December 2015; BDI-OTP-0003-1932, at 1963.

69 BDI-OTP-0006-0002, at 0192.

70 BDI-OTP-0003-1932, at 2019; BDI-OTP-0003-4119, at 4127, para. 30.

conducted in a more covert manner, with persons being forced to board pick-up trucks and taken to secret isolated locations, often blindfolded.

Arbitrary arrests and acts of torture also continued to be committed in 2016 and 2017.

Cases of disappearance of political opponents, members of civil society and members of the former Forces Armées Burundaises (“ex-FAB”),

who were considered disloyal and likely to turn against President Nkurunziza, were also recorded.

It is reported that in fact, the number of cases of persons who went missing after being arrested by the security forces increased since the beginning of 2016.

(ii) State Policy

40. The available information shows that the above mentioned acts of killing, assassinations and attempted assassinations, illegal detention, torture, rape, and cases of disappearance formed part of a campaign carried out against civilians who opposed or were perceived to oppose the ruling party: demonstrators against President Nkurunziza’s third term in office and suspected demonstrators, members of the opposition political parties, members of the civil society, journalists, members and sympathisers of armed opposition groups or persons suspected of having joined such groups, and ex-FAB members.

41. The supporting material points to the involvement of several State institutions:

(i) the “Police Nationale du Burundi” (“PNB”), the Burundian National Police, with two of its units being particularly implicated: (1) the Brigade Anti-Émeute (“BAE”), an anti-riot brigade; and (2) the Appui pour la Protection des Institutions (“API”), a unit

71 BDI-OTP-0003-1932, at 1982-1986. See also BDI-OTP-0005-0003, at 0010, para. 31.

72 BDI-OTP-0003-4293, at 4296, para. 12; Report of the Secretary-General on Burundi, 23 February 2017, UN Doc. S/2017/165, BDI-OTP-0003-4558, at 4564, paras 29 and 33 (“BDI-OTP-0003-4558”).

73 The Forces Armées Burundaises referred to here denote the former armed forces of Burundi in existence before the 2000 Arusha Peace and Reconciliation Agreement for Burundi; BDI-OTP-0003-1932, at 1966.

74 BDI-OTP-0005-0003, at 0011, paras 37-38; BDI-OTP-0003-1932, at 1990-1992.

75 BDI-OTP-0003-1932, at 2002.

76 BDI-OTP-0005-0003, at 0007, para. 14; BDI-OTP-0003-4258, at 4264-4265, paras 39 and 42; BDI-OTP- 0003-1211, at 1231, para. 52, at 1235, para. 65, at 1237, para. 71, at 1239, para. 78.

mandated to guard institutions, senior officials and politicians;

(ii) the Service National de Renseignement (“SNR”), Burundi’s national intelligence service;

and (iii) units of the Force de Défense Nationale (“FDN”), the Burundian army, in particular the Bataillon Génie des Combats (“BGC”) and the Brigade Spéciale de Protection des Institutions (“BSPI”), a specialized army unit in charge of the protection of State institutions.

42. According to the available information, the above State institutions operated largely through parallel chains of command.

Several of the units involved were reported to be de facto headed by persons loyal to the regime.

For example, the director of the police, an ex-FAB, was excluded from the decision-making process and his deputy received orders directly from the Minister of Public Security and the Office of the President.

Similarly, the BGC received orders directly from the chief of the General Staff and President Nkurunziza, circumventing the chain of command and ex-FAB officers.

43. Those who opposed or were thought to oppose the regime and President Nkurunziza’s third term were dismissed, transferred or assassinated. Notably, the head of the SNR, Major General Godefroid Niyombaré, was replaced in February 2015

after writing to the President advising him not to seek a third term.

Members of the military, predominantly ex-FAB, were retired, replaced, transferred from Bujumbura to provincial locations, arrested or assassinated.

Conversely, those

“willing to kill” were recruited into units such as the BAE. It is reported that

77 BDI-OTP-0005-0003, at 0008, para. 19; BDI-OTP-0003-1932, at 2064-2069; BDI-OTP-0003-1661, at 1676.

78 BDI-OTP-0005-0003, at 0008, para. 18; BDI-OTP-0003-1932, at 2073; BDI-OTP-0003-1211, at 1263, para.

158.

79 BDI-OTP-0003-1932, at 2069-2072; BDI-OTP-0005-0003, at 0008, para. 20.

80 BDI-OTP-0005-0003, at 0008, para. 22; BDI-OTP-0003-1661, at 1694.

81 BDI-OTP-0003-1932, at 2064.

82 BDI-OTP-0003-1932, at 2068-2069.

83 BDI-OTP-0003-1932, at 2070.

84 République du Burundi, Cabinet du Président, Décret No. 100/30 du 18 février 2015 portant destitution de l’Administrateur général du Service National de Renseignement, BDI-OTP-0003-2937.

85 BDI-OTP-0003-1932, at 1964-1965.

86 BDI-OTP-0003-1932, at 1967 and at 2069.

according to an inside police source, when the BAE was created in September 2015,

approximately 300 police officers, essentially snipers, were “chosen from within the different sections of the police – those who are ‘strong,’ i.e. willing to kill”.

44. The supporting material also points to the heavy involvement of members of the Imbonerakure. They were purportedly trained in 2014 in the Democratic Republic of the Congo (“DRC”) under the coordination of SNR officials.

It is also reported that they received weapons, vehicles and uniforms from the police and the SNR.

The command and control of members of the Imbonerakure have been linked to members of the security forces associated with President Nkurunziza’s inner circle.

45. During the relevant time, members of the Imbonerakure conducted joint operations with the security forces resulting in killings, beatings and arbitrary arrests, sometimes in the presence of intelligence officers.

It is also alleged that they handed over individuals directly to SNR officers or the police and were seen alongside police and SNR officers in detention centres.

(iii) Widespread and Systematic

46. The attack against the civilian population still ongoing in 2017 targeted a large number of civilian victims. Estimates put the number of victims at no less than 1,200 persons killed, thousands illegally detained, thousands reportedly tortured, and

87 République du Burundi, Cabinet du Ministre de la Sécurité Publique, Ordonnance No 215/1182 du 07/09/2015 portant création, organisation, composition, missions et fonctionnement de la Brigade Anti-Émeute, BDI-OTP-0003-2749.

88 BDI-OTP-0003-1932, at 2065.

89 Final report of the Group of Experts on the Democratic Republic of the Congo, UN Doc. S/2015/19, 12 January 2015, BDI-OTP-0003-4348, at 4367-4368, paras 88-89.

90 Office of the United Nations High Commissioner for Human Rights, Media Centre, “Increased militia violence ‘could tip Burundi over the edge’”, 9 June 2015, BDI-OTP-0003-4622, at 4623; see also BDI-OTP- 0003-1793, at 1822, at 1858.

91 US Department of the Treasury Press Centre, Treasury Sanctions Three Individuals for Contributing to the Ongoing Violence in Burundi, 2 June 2016, BDI-OTP-0003-4004.

92 BDI-OTP-0003-4293, at 4297, para. 14; BDI-OTP-0005-0003, at 0010, para. 34; BDI-OTP-0003-1717, at 1718; BDI-OTP-0003-1793, at 1883-1884 and at 1897; BDI-OTP-0003-1932, at 1968.

93 BDI-OTP-0005-0003, at 0009, paras 26-27; BDI-OTP-0003-1793, at 1897.

hundreds disappeared.

The alleged acts of violence reportedly resulted in the displacement of 413,490 persons between April 2015 and May 2017.

47. The material submitted also reveals that the acts of violence did not occur randomly, but were rather planned and organized following a pattern of violence against civilians. Notably, it is reported that, starting in April 2015, the SNR and the Imbonerakure compiled lists of persons considered to be opposed to the ruling party based on (i) videos and photographs taken during demonstrations; (ii) photo albums confiscated during search operations; and (iii) interrogations conducted by the SNR.

The security forces reportedly relied on these lists and photographs to identify individuals to be arrested, imprisoned and sometimes executed.

Further, as highlighted above, different State institutions and units of the police and the army were involved in the alleged commission of crimes, with some of the units, such as the BAE, having been created during the course of the events. The units were reportedly commanded by persons selected for their loyalty to the President.

The material submitted also indicates a high level of collaboration between the police, the SNR, and members of the Imbonerakure, in particular in the arrest and transfer of detainees.

c) Conclusion

48. Based on the above, the Chamber finds a reasonable basis to believe that since at least 26 April 2015 an attack against the Burundian civilian population has been carried out pursuant to a State policy to supress dissenting views and opposition to President Nkurunziza’s third term in office. The Chamber acknowledges that some of the demonstrators as well as unidentified armed men were involved in acts of

94 International Federation for Human Rights, Burundi on the brink: looking back on two years of terror, June 2017, BDI-OTP-0004-0235, at 0239; BDI-OTP-0003-4258, at 4264, para. 35.

95 United Nations High Commissioner for Refugees, Burundi Situation, May 2017, BDI-OTP-0004-0394, at 0394.

96 BDI-OTP-0003-1932, at 1999.

97 See above paras 41-43.

98 See above para. 45.

violence, which sometimes led to death, and that the security forces acted at times in response to such events.

However, considering the methods used by the security forces and the type of resistance they had encountered, the discriminatory nature of the crimes committed and the number of victims, the Chamber is satisfied that the attack was directed against the civilian population. The Chamber is further satisfied to the requisite threshold that the attack was both widespread and systematic.

2. The Crimes

a) Murder and Attempted Murder (i) The Law

49. The crime of murder, within the meaning of article 7(1)(a) of the Statute, is committed when a person is killed

as a result of the perpetrator’s act or omission.

In the case of attempted murder, substantial steps have been taken to execute the crime, but it does not occur because of circumstances independent of the perpetrator’s intentions.

(ii) The Facts

50. The supporting material indicates that since at least 26 April 2015 members of the Burundian security forces and the Imbonerakure have killed or attempted to kill persons who opposed, or were perceived to oppose the ruling party and/or President Nkurunziza’s third term. Estimates of the number of deaths vary from at

99 BDI-OTP-0003-4783, at 4796-4801; BDI-OTP-0005-0003, at 0010, para. 29; BDI-OTP-0003-1211, at 1231- 1232, para. 53-54, at 1237-1239, paras 73 and 77, at 1240, para. 82, at 1242, para. 88, at 1243, paras 91-92, at 1245, para. 99; BDI-OTP-0003-1793, at 1883.

100 Footnote 7 in the Elements of Crimes specifies that ‘[t]he term “killed” is interchangeable with the term

“caused death”’.

101 See also Bemba Judgment, paras 87-88; 91-94; Katanga Judgment, paras 767-769 and 783-791; Bemba Confirmation Decision, paras 131-134 and 273-274.

102 Article 25(3)(f) of the Statute.

least 348, for the period between 26 April 2015 and the end of April 2016,

to more than 1,200, for the period between April 2015 and June 2017.

The main perpetrators of these killings are reported to be the Burundian security forces.

51. The above information is further supported by a number of communications submitted by or on behalf of victims relating dozens of cases of murder or attempted murder between May 2015 and March 2017 attributable to the Burundian security forces and/or the Imbonerakure.

Those (attempted) murders were allegedly committed in Burundi, mostly in Bujumbura, but also in other provinces, such as Ryansoro

or Kirundo,

and even outside Burundi, for example in Uganda.

Victims are often in a position to indicate the names of the alleged perpetrators and their affiliation, i.e. whether they belong to the SNR, the PNB, the Imbonerakure or the FDN.

Very often those who survived attempted murders or the families of those killed went into exile.

52. Four general patterns of killings can be discerned from the available information: (i) killings during or in the immediate aftermath of demonstrations;

(ii) killings during police operations, principally cordon and search operations, in neighbourhoods associated with the political opposition or where attacks on security forces had occurred; (iii) killings conducted in secret; and (iv) targeted killings of civilians based on their actual or perceived association with the opposition.

103 BDI-OTP-0003-4119, at 4123, para. 10; see also République du Burundi, Ministère de la Sécurité Publique, Revue Annuelle No. 8, Décembre 2016, BDI-OTP-0003-1517, at 1521, reporting the death of 374 civilians,

“victimes de l’insurrection” as of March 2016.

104 BDI-OTP-0004-0235, at 0239; see also BDI-OTP-0003-1932, at 1952.

105 BDI-OTP-0003-4119, at 4123, para. 10; BDI-OTP-0003-1932, at 1952.

106 BDI-OTP-0003-4724; BDI-OTP-0005-0042; BDI-OTP-BDI-OTP-0001-0302; BDI-OTP-0004-0047; BDI- OTP-0001-0002.

107 BDI-OTP-0006-0002, at 0094.

108 BDI-OTP-0004-0448, at 0924.

109 BDI-OTP-0006-0002, at 0066, reporting an attempted murder by persons speaking in Kirundi.

110 [REDACTED].

111 BDI-OTP-0004-0448, at 0608; BDI-OTP-0004-0448, at 0615; and BDI-OTP-0006-0002, at 0487.

53. Killings in the context of demonstrations. According to the supporting material, it is estimated that between 27 and 80 persons were killed during demonstrations, between 26 April and July 2015,

including eight children.

Most of them were shot by the police.

The first incidents of killing were already reported on the first day of protests, with at least three persons killed in Bujumbura; within a week, the number of victims had risen to at least seven.

54. In particular, on 26 April 2015, the police shot a 15-year-old boy in the head, after he fell down while running away to hide.

In the evening, a man in police uniform reportedly opened fire on a group of people who were sitting outside a house, in Bujumbura, killing at least two men in their mid-60s with shots to the back and the head.

On 4 May 2015, policemen fired shots at a crowd of demonstrators who were running away from them. It appears that they killed at least two persons by shooting them in the back.

Similar events took place on 10 May 2015, when the police fired bullets at demonstrators who were running away after teargas had been used against them. The bullets hit at least one man who later died from the wounds.

It is also reported that on 13 May, and on 5 June 2015, the police shot at protesters who were throwing stones at them, causing the death of one man on each occasion.

55. While some demonstrators were involved in acts of violence,

it appears that the police used unwarranted and excessive force against protesters. The Chamber notes that the police used live ammunition in response to demonstrators who were

112 BDI-OTP-0003-1793, at 1914; BDI-OTP-0003-1932, at 1958.

113 BDI-OTP-0003-1661, at 1678.

114 BDI-OTP-0003-1932, at 1958.

115 BDI-OTP-0003-1211, at 1229-1230, paras 47-48.

116 BDI-OTP-0003-1661, at 1679; BDI-OTP-0003-1211, at 1230, para. 47.

117 BDI-OTP-0003-1661, at 1676-1677.

118 BDI-OTP-0003-1661, at 1688-1689.

119 BDI-OTP-0003-1793, at 1918.

120 BDI-OTP-0003-1661, at 1686 and 1690; BDI-OTP-0003-1211, at 1237, para. 72.

121 BDI-OTP-0003-4783, at 4798-4801; BDI-OTP-0005-0003, at 0010, para. 29; BDI-OTP-0003-1211, at 1231- 1232, paras 53-54.

throwing stones at them and shot at persons who were running from the police or were otherwise not posing a threat.

56. Killings during cordon and search operations. The supporting material reveals that the security forces carried out dozens of summary executions in the context of cordon and search operations conducted in response to attacks on the security forces.

57. For example, on 1 July 2015, the police reportedly conducted a cordon and search operation in the Mutakura neighbourhood of Bujumbura after having been attacked with grenades by a group of armed men. In the course of the operation, they forced one family to leave their home and shot them in the street with bullets to the head and abdomen. Another man was executed while kneeling down with his arms in the air. In total, six persons were reportedly killed during the operation.

In another incident, on 5 August 2015, in Cibitoke, Bujumbura, members of the Imbonerakure, accompanied by police officers, allegedly executed two men after ordering them to kneel with their hands in the air.

58. During the months of September, October, November and December 2015, bodies were found on an almost daily basis in the streets of Bujumbura, often following police operations in neighbourhoods seen as opposing President Nkurunziza’s third term in office.

Bodies were regularly found also in several provinces, often with their arms tied behind their backs. In some cases, the victims were identified as persons who opposed President Nkurunziza’s new term in office or as members of the opposition parties.

122 BDI-OTP-0003-1793, at 1847 and at 1914; BDI-OTP-0003-1661, at 1682; BDI-OTP-0003-1932, at 1956;

BDI-OTP-0003-4258, at 4268, para. 62; BDI-OTP-0003-4293, at 4299, para. 20.

123 BDI-OTP-0003-1932, at 1977; BDI-OTP-0003-4258, at 4262, paras 24-25, at 4265, para. 43.

124 BDI-OTP-0003-1932, at 1977-1978.

125 BDI-OTP-0005-0003, at 0010, para. 34.

126 BDI-OTP-0003-1932, at 1979.

127 BDI-OTP-0005-0003, at 0010, para. 33.